19Qualifying liabilities

19 Qualifying liabilities

(1) A person (the midwife) or, in the case of a claim against the eligible entity for a midwife in relation to a Birthing on Country out‑of‑hospital incident, the entity has a qualifying liability in relation to a claim if: (a) one of the following applies: (i) the liability is under a judgment or order of a court in relation to the claim, being a judgment or order that is not stayed and is not subject to appeal; (ii) the liability is under a settlement of the claim that takes the form of a written agreement between the parties to the claim; (iii) the liability is some other kind of liability (for example, a liability to legal costs) that relates to the claim; and (b) the defence of the claim was conducted appropriately (see subsection (2)) up to the time when: (i) if the liability is under a judgment or order of a court—the date on which the judgment or order became a judgment or order that is not stayed and is not subject to appeal; or (ii) if the liability is under a settlement of the claim—the date on which the settlement agreement was entered into; or (iii) if the liability is some other kind of liability—the date on which the liability was incurred; and (c) if the liability is under a settlement of the claim, or is under a consent order made by a court—a legal practitioner has given a statutory declaration certifying that the amount of the liability is reasonable; and (d) if an apportionment certificate is in force in relation to the current claim—the amount paid or payable in relation to the current claim is consistent with the proportion of the overall liability specified in the apportionment certificate as the proportion that is to be attributed to the midwife or entity against whom the claim was made. (2) For the purposes of paragraph (1)(b), the defence of the claim is conducted appropriately if, and only if: (a) to the extent it is conducted on the midwife or entity’s behalf by an insurer, or by a legal practitioner engaged by the insurer—the defence is conducted to a standard that is consistent with the insurer’s usual standard for the conduct of the defence of claims; and (b) to the extent it is conducted by the midwife or entity, or by a legal practitioner engaged by the midwife or entity—the defence is conducted prudently. (3) In this section:

defence of the claim includes any settlement negotiations on behalf of the midwife or eligible entity.